Orissa High Court
Nilamadhab Sahu vs Chief Engineer on 28 February, 2025
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 04-Mar-2025 18:43:45
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 3076 OF 2016
(An application under Articles 226 and 227 of the Constitution of India)
*****
Nilamadhab Sahu ...... Petitioner
-Versus-
1. Chief Engineer, Minor Irrigation,
Odisha, Bhubaneswar,
2. Superintending Engineer, S.MI. (C),
Berhampur, Dist: Ganjam,
3. Executive Engineer, Minor Irrigation Division,
Ganjam Circle-1, Berhampur, Dist: Ganjam,
4. Presiding Officer, Labour Court, Odisha,
Bhubaneswar ....... Opp. Parties
Advocates appeared:
For Petitioner : Mr. Ramanath Acharya, Advocate
For Opp. Parties : Mr. Subha Bikas Panda,
Additional Government Advocate
CORAM :
MR. JUSTICE K.R. MOHAPATRA
& MR. JUSTICE SANJAY KUMAR MISHRA
------------------------------------------------
Heard and disposed of on 28.02.2025
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JUDGMENT
By the Bench;
1. This matter is taken up through hybrid mode.
2. Petitioner in this writ petition prays to set aside the order dated
16th October, 2014 (Annexure-1) passed in ID Misc. Case No.56 of
2012, wherein, learned Presiding Officer, Labour Court, Bhubaneswar
W.P.(C) No. 3076 OF 2016
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Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 04-Mar-2025 18:43:45
rejected an application filed by the Petitioner under Section 33-C(2) of
the Industrial Disputes Act, 1947 (for brevity ‘ID Act‘).
3. Mr. Acharya, learned counsel submits that the Petitioner
was initially appointed as a work-charged employee. He was
subsequently promoted as work-charged Concrete Mixture
Driver in the scale of pay of Rs.625-12-709-EB-12-745-15-790-
EB-15-940/- vide order dated 29th December, 1991 under
Annexure-7 issued by the Superintending Engineer, Southern
Minor Irrigation Circle, Berhampur, Ganjam. The scale of pay of
Concrete Mixture Driver was subsequently revised and fixed at
Rs.3050-4590 vide order dated 12th November, 1999
(Annexure-5) issued by the Chief Engineer, Minor Irrigation,
Odisha, Bhubaneswar. Hence, the Petitioner submitted
representations to revise his scale of pay accordingly. However,
his repeated representations were not considered. Finding no
other alternative, the Petitioner filed an application under Section
33-C(2) of the ID Act before the Labour Court, Bhubaneswar,
which was dismissed vide order under Annexure-1.
4. It is further submitted by Mr. Acharya, learned Counsel
that the Petitioner had a pre-existing right to receive the revised
scale of pay in view of his order of promotion vide Annexure-7
with effect from 29th December, 1991 and the revision in the
scale of pay vide Annexure-5 dated 12th November, 1999
(Annexure-5). Although the Petitioner joined the promotional
post on 3rd January, 1992 and was discharging his duties as such
till the date of his superannuation, i.e., 30th June, 2010, but he
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Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 04-Mar-2025 18:43:45
was not paid his arrear salary as per the revised scale of pay. The
application being filed under Section 33-C(2) of the ID Act,
learned Labour Court should have computed the same and
directed the Management to pay the legitimate entitlement of the
Petitioner. Instead, his application was dismissed ex-parte vide
order under Annexure-1. Hence, this writ petition has been filed
to set aside the said order dated 16th October, 2014 and direct the
Authorities to pay the legitimate dues of the Petitioner as per the
revised scale of pay.
5. Mr. Acharya, learned Counsel for the Petitioner, placing
reliance on the following decisions of different High Courts,
submits that since the Petitioner had a pre-existing right to
receive the revised scale of pay, his application under Section
33-C (2) of ID Act was very much maintainable. The case laws
relied upon by Mr. Acharya, learned Counsel are as follows;
i) Sayal Mal Bhansali Vs. Judge, Labour Courts,
Udaipur and another; 1995 (I) LLJ 914, Rajsthan
(para-14)
ii) Management of Tingal Ibam Tea Estate Vs.
Presiding Officer, Labour Court and another; 2002
(I) LLJ 177 Gauhati (para-6 and 7)
iii) Uttar Pradesh State Road Transport Corporation,
Meerut; 2012 (III) LLJ 461 (All) (para-6)
6. Mr. Acharya, learned Counsel further submits that when
there was no dispute with regard to revision of scale of pay,
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Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 04-Mar-2025 18:43:45
learned Labour Court, exercising its power under Section 33-
C(2) of the ID Act, ought to have computed the legitimate dues
of the Petitioner and granted relief sought for by issuing
appropriate direction to release his arrear salary.
7. Per contra, Mr. Panda, learned AGA submits that the
proceeding under Section 33-C (2) of the ID Act, is in the nature
of an execution proceeding. Hence, the entitlement, if any, of the
Petitioner, which needs adjudication, could not have been gone
into in such a proceeding. Since there was a dispute as to
entitlement of the Petitioner regarding the revised scale of pay
and the same being denied by the Employer, the Labour Court
has rightly dismissed the application of the Petitioner as the same
being beyond its jurisdiction. In support of his submission, Mr.
Panda, learned AGA places reliance on the judgment of Hon’ble
Supreme Court in Municipal Corporation of Delhi Vs. Ganesh
Razak and another; reported in (1995) 1 SCC 235.
8. Mr. Panda, learned AGA further submits that, the
representations submitted by the Petitioner for drawal of his
arrear salary in the revised scale of pay were rejected. Thus, the
claim of Petitioner for arrear salary in the revised scale of pay
requires adjudication. As held by Hon’ble Supreme Court in
Ganesh Razak and another (supra) the Industrial Adjudicator
cannot assume jurisdiction to adjudicate a disputed question of
fact in exercise of power under Section 33-C (2) of the ID Act.
Further, as is detailed in the impugned order, the Petitioner, after
his retirement, had also filed OA No.1492 of 2011 before the
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Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
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Date: 04-Mar-2025 18:43:45
Odisha Administrative Tribunal, Bhubaneswar to fix his pension
taking into consideration the period of his employment in regular
establishment as per Rule 18 (3) of the OCS Pension Rules,
1992. No claim for arrear salary in the revised scale of pay was
raised in the said Original Application. Thus, learned trial Court
has committed no error in in dismissing the application filed by
the Petitioner in ID Misc. Case No.56 of 2012 filed under Section
33-C (2) of the ID Act.
9. Upon hearing learned Counsel for the parties and on
perusal of record, this Court finds that the Petitioner initially
joined under the work-charged establishment on 15th January,
1972. Subsequently, his service was regularized in the post of
Helper on 17th January, 1977 after five years of continuous
service vide office order No.5237 dated 28th April, 1988
(Annexure-2) issued by the Superintending Engineer, S.M.I.
Circle, Berhampur. The Petitioner was promoted to the post of
work-charged Concrete Mixture Driver with scale of pay of
Rs.625-940/- with usual DA and other allowances vide order
dated 29th December, 1991 (Annexure-7) issued by the
Superintending Engineer, S.M.I. Circle, Berhampur. He joined in
the said post in the afternoon of 3rd January, 1992. While
continuing as such, the salary of Concrete Mixture Driver was
revised and was fixed at Rs.3050-4590/- with initial scale of pay
at Rs.950-1500/-. The said revision in the scale of pay was
pursuant to an order of the Chief Engineer, Minor Irrigation,
Odisha, Bhubaneswar vide notification dated 12th November,
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Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 04-Mar-2025 18:43:45
1999 (Annexure-5). Thus, the Petitioner claimed revised scale of
pay. His grievance was allegedly not paid any heed. As such, the
Petitioner filed ID Misc. Case No.56 of 2012 under Section 33-C
(2) of the ID Act for computation of his arrear salary in terms of
the revised scale of pay and to pay the same. Learned Labour
Court, Bhubaneswar, taking into consideration the rival
contentions of the parties and documents on record, came to hold
that the representations of the Petitioner for revision in the scale
of pay were turned down by the Authority. Thus, it appears from
the admitted facts and documents on record that there is an
existing dispute as to what should have been the Petitioner’s
scale of pay as a work-charged Concrete Mixture Driver.
10. The contention of Mr. Acharya, learned Counsel for the
Petitioner cannot be accepted on the ground that the claim of the
Petitioner for revision in the scale of pay was turned down by the
Authority. There appears no material on record to show that said
refusal and inaction with regard to release of arrear salary on
revision of scale of pay was challenged before any competent
Court of law by the Petitioner. Further, the case laws relied upon
by Mr. Acharya, learned counsel are of no assistance to the case
of the Petitioner, as the same do not deal with a disputed claim,
as that of the Petitioner. However, the ratio in the case of Ganesh
Razak and another (supra), relied upon by the learned State
Counsel, rather makes the position of law clear to the extent that
a proceeding under section 33-C (2) of the ID Act is in the nature
of an execution proceeding. Thus, it should follow that an
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Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 04-Mar-2025 18:43:45
investigation of the nature of determinations, i.e., (i) the
workman’s right to relief; (ii) the corresponding liability of the
Management, including, whether it is, at all, liable or not is,
normally, outside the scope of Section 33-C (2) of ID Act. Thus,
it leaves no iota of doubt that the claim of the Petitioner is not
within the jurisdiction of learned Labour Court under Section 33-
C (2) of the ID Act. Paragraph Nos. 11 and 12 of the said
judgment, being relevant, are reproduced below:-
“11. In Central Inland Water Transport Corporation Ltd. v.
The Workmen & Anr., 1975 (1) SCR 153, it was held with
reference to the earlier decisions that a proceeding under
Section 33C (2) being in the nature of an execution
proceeding, it would appear that an investigation of the
alleged right of reemployment is outside its scope and the
Labour Court exercising power under Section 33C (2) of the
Act cannot arrogate to itself the functions of adjudication of
the dispute relating to the claim of re-employment.
Distinction between proceedings in a suit and execution
proceedings thereafter was pointed out. It was indicated that
the plaintiff’s right to relief against the defendant involves an
investigation which can be done only in a suit and once the
defendant’s liability had been adjudicated in the suit, the
working out of such liability with a view to give relief is the
function of an execution proceeding. This distinction is
clearly brought out in that decision as under:-
“In a suit, a claim for relief made by the plaintiff
against the defendant involves an investigation
directed to the determination of (i) the plaintiff’s right
to relief; (ii) the corresponding liability of the
defendant, including, whether the defendant is, at all,
liable or not; and (iii) the extent of the defendant’s
liability, if any. The working out of such liability with
a view to give relief is generally regarded as the
function of an execution proceeding. Determination
No. (iii) referred to above, that is to say, the extent of
the defendant’s liability may sometimes be left over
for determination in execution proceedings. But that
is not the case with the determinations under heads
(i) and (ii). They are normally regarded as the
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Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 04-Mar-2025 18:43:45functions of a suit and not an execution proceeding.
Since a proceeding under section 33(C)(2) is in the
nature of an execution proceeding it should follow
that an investigation of the nature of determinations
(i) and (ii) above is, normally, outside its scope. It is
true that in a proceeding under section 33 (C)(2), as
in an execution proceeding, it may be necessary to
determine the identity of the person by whom or
against whom the claim is made if there is a
challenge on that score. But that is merely
‘incidental’. To call determinations (i) and (ii)
‘incidental’ to an execution proceeding would be a
perversion, because execution proceedings in which
the extent of liability is worked out are just
consequential upon the determinations (i) and (ii) and
represent the last stage in a process leading to final
relief. Therefore, when a claim is made before the
Labour Court under section 33(C)(2) that court
must clearly understand the limitations under which
it is to function. It cannot arrogate to itself the
functions – say of an Industrial Tribunal which
alone is entitled to make adjudications in the nature
of determinations (i) and (ii) referred to above, or
proceed to compute the benefit by dubbing the
former as ‘incidental’ to its main business of
computation. In such cases, determinations (i) and
(ii) are not ‘incidental’ to the computation. The
computation itself is consequential upon and
subsidiary to determinations (i) and (ii) as the last
stage in the process which commenced with a
reference to the Industrial Tribunal. It was, therefore,
held in State Bank of Bikaner and Jaipur vs R.L.
Khandelwal, 1968 L.L.J. 589, that a workman
cannot put forward a claim in an application under
section 33(C)(2) in respect of a matter which is not
based on an existing right and which can be
appropriately the subject- matter of an industrial
dispute which requires a reference under section 10
of the Act.”
12. The High Court has referred to some of these decisions
but missed the true import thereof. The ratio of these
decisions clearly indicates that where the very basis of the
claim or the entitlement of the workmen to a certain benefit is
disputed, there being no earlier adjudication or recognition
thereof by the employer, the dispute relating to entitlement is
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Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 04-Mar-2025 18:43:45
not incidental to the benefit claimed and is, therefore, clearly
outside the scope of a proceeding under Section 33C (2) of
the Act. The Labour Court has no jurisdiction to first decide
the workmen’s entitlement and then proceed to compute the
benefit so adjudicated on that basis in exercise of its power
under Section 33C(2) of the Act. It is only when the
entitlement has been earlier adjudicated or recognised by
the employer and thereafter for the purpose of
implementation or enforcement thereof some ambiguity
requires interpretation that the interpretation is treated as
incidental to the Labour Court’s power under Section 33C
(2) like that of the Executing Court’s power to interpret the
decree for the purpose of its execution.
(Emphasis supplied)
11. Thus, from the admitted facts on record so also settled
position of law, as detailed above, this Court is of the
considered opinion that the learned Labour Court, in exercise of
power under Section 33-C (2) of the ID Act, had no jurisdiction
and competence to compute the disputed claim of the Petitioner
and issue direction to pay the same, as the same was disputed
and denied by the Management. As such, learned Labour Court
has committed no error in dismissing the application filed by
the Petitioner under Section 33-C (2) of the ID Act.
12. Hence, the writ petition, being devoid of any merit,
stands dismissed. But in the facts and circumstances of the case,
there shall be no order as to cost.
(K.R. Mohapatra)
Judge
(S.K. Mishra)
Judge
Orissa High Court, Cuttack,
Dated 28th February, 2025/s.s.satapathy
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